By the Court, HARDESTY, J.:
In this appeal, we determine whether a superpriority lien for common expense assessments pursuant to NRS 116.3116(2)
The property at issue in this case is located in Horizons at Seven Hills Ranch, a common-interest community as defined in NRS Chapter 116, operated and managed by appellant Horizons at Seven Hills Homeowners Association (Horizons). As a common-interest community, Horizons has the ability to collect and charge assessments, and administer and enforce the CC & Rs upon the unit owners, for the purpose of benefiting the community. See NRS 116.3115.
Horizons recorded its Declaration of CC & Rs in July 2005. Later that year, Hawley McIntosh purchased a home located within the common-interest community. In June 2009, McIntosh became delinquent on his first mortgage payments, and his first mortgage lender, OneWest Bank FSB, recorded a notice of default that same month. In August 2009, Horizons recorded a notice of default against McIntosh for nonpayment of association assessments and other costs in the amount of roughly $4,300. Before Horizons could foreclose, OneWest foreclosed on McIntosh's home in June 2010, holding a foreclosure auction on the same day, at which Scott Ludwig purchased the property. Ludwig transferred the property by quitclaim deed to respondent Ikon Holdings, LLC (Ikon) later that year.
Horizons contacted Ikon and explained that Ikon acquired the property subject to Horizon's unextinguished superpriority lien. Horizons demanded roughly $6,000 to extinguish the lien, which, in addition to unpaid assessments, included roughly $2,700 in collection fees and foreclosure costs. In response, Ikon acknowledged that it acquired the property subject to Horizon's superpriority lien, but it disagreed that the lien included nine months rather than six months of unpaid assessments or the collection fees and foreclosure costs that Horizons was seeking to recoup.
When the parties were unable to resolve the matter, Ikon filed the underlying declaratory relief action. In particular, Ikon sought a ruling that, under NRS 116.3116(2), the superpriority portion of an HOA's lien consists of nine months' (or alternatively six months' based on the CC & Rs) worth of assessments and does not include collection fees and foreclosure costs. Horizons opposed the motion, arguing that NRS 116.3116(2)'s superpriority provision necessarily includes nine months of assessments and collection fees and foreclosure costs. The district court granted Ikon partial declaratory relief, reasoning that Horizons' CC & Rs limited its superpriority lien to an amount equal to six months of assessments, which did not offend NRS 116.3116(2)'s superpriority provision providing for nine months of assessments. Horizons now appeals.
On appeal, Horizons contends it is owed nine months of unpaid assessments totaling $1,657.50 and $1,592 in collection fees and foreclosure costs.
Horizons and amicus curiae Community Association Management Executive Officers,
Questions of statutory construction are reviewed de novo. Ransdell v. Clark Cty., 124 Nev. 847, 854, 192 P.3d 756, 761 (2008). When interpreting an ambiguous statute, this court attempts to ascertain the Legislature's intent. Chanos v. Nev. Tax Common, 124 Nev. 232, 240, 181 P.3d 675, 681 (2008). To determine the Legislature's intent, we look to "legislative history, reason, and considerations of public policy." Id.
NRS 116.3116(1) confers to an HOA a lien on a homeowner's unit for unpaid assessments, construction penalties, and fines levied against the unit. NRS 116.3116(2) establishes the priority of that lien, splitting the lien into two pieces — "a superpriority piece and a subpriority piece." SFR Invs. Pool 1 v. U.S. Bank, N.A., 130 Nev. ___, ___, 334 P.3d 408, 411 (2014). The superpriority lien
NRS 116.3116(2). SFR characterized the superpriority piece as including "the last nine months of unpaid HOA dues and maintenance and nuisance-abatement charges."
Horizons argues that based on persuasive caselaw and on rules of statutory construction, NRS 116.3116(2) provides for a look-back provision, designed to place it in the same position it would have been over the previous nine months, but for the default. We are not persuaded by this argument.
To support its position, Horizons argues that this court should adopt the holding in Hudson House Condominium Ass'n, Inc. v. Brooks, 223 Conn. 610, 611 A.2d 862 (1992). In Hudson House, a condominium association was "foreclos[ing] a statutory lien for delinquent common expense assessments due on a condominium unit owned by the named defendant." Id. at 864. The association asserted that pursuant to the superpriority lien,
We disagree with Hudson House's holding for three reasons. First, the court did not conduct a statutory analysis of the superpriority lien language. Neither NRS 116.3116(2) nor the Connecticut statute creating the superpriority lien mention collection fees and foreclosure costs, and the statutes specifically provide that the superpriority lien is limited to "the extent of the assessments for common expenses." NRS 116.3116(2); see also Hudson House, 611 A.2d at 863 n. 1 (quoting the Connecticut statute: "to the extent of the common expense assessments").
Second, Hudson House relied on the policy concern that because common expense assessments are often small, and the prioritized portion of the lien is typically the only collectible portion for an HOA, "it seems highly unlikely that the legislature would have authorized such foreclosure proceedings without including the costs of collection in the sum entitled to a priority." Id. at 866. Horizons makes similar arguments: that limiting the superpriority lien to only nine months of unpaid assessments leads to absurd results and renders the statute meaningless because foreclosure will often be economically unfeasible for HOAs. We are not persuaded by this line of reasoning. While we recognize that collection fees and costs may be incurred in a foreclosure, the Legislature has the authority to determine the definition of a superpriority lien and may provide for the recovery of collection fees and costs under different provisions of the statutory scheme. See, e.g., NRS 116.31164(3)(c) (2005) (providing for priority to the selling party on certain fees and costs). But that legislative choice does not render the definition of a superpriority lien absurd.
Third, in Hudson House, the association brought an action to judicially foreclose on the property, entitling it to a "judgment or decree." 611 A.2d at 864. In effect, the court found that the association was the prevailing party and, on that basis, was entitled to the recovery of the costs and fees under the Connecticut statute.
Horizons further contends that NAC 116.470 must be read in conjunction with NRS 116.3116(2). NAC 116.470 sets a cap of $1,950 that applies in most foreclosure sales. Horizons argues that if NRS 116.3116(2) is interpreted to not include collection fees and foreclosure costs, it will contradict NAC 116.470 by removing the need for a cap. We interpret "statutes within a statutory scheme harmoniously with one another to avoid an unreasonable or absurd result." Nev. Attorney for Injured Workers v. Nev. Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d 1265, 1271 (2010) (internal quotations omitted). Additionally, "administrative regulations cannot contradict the statute they are designed to implement." Id. at 83, 225 P.3d at 1271 (internal quotations omitted).
We conclude that NAC 116.470 and NRS 116.3116(2) can easily be reconciled. Interpreting the superpriority lien to exclude collection fees and foreclosure costs does not preclude fees and costs from being incurred, up to the cap. Such an interpretation of NRS 116.3116(2) only speaks to the priority in which those fees and costs can be collected. NAC 116.470 simply provides for a cap on fees and costs but does not speak to priority.
A review of the legislative history further demonstrates that the Legislature did not intend for collection fees and foreclosure costs incurred to be included in NRS 116.3116(2)'s superpriority lien, NRS 116.3116 comes from the Uniform Common Interest Ownership Act (UCIOA) of 1982, which is codified in the Nevada Revised Statutes as NRS Chapter 116. See NRS 116.001. Section 3-116 of the UCIOA is substantially similar to NRS 116.3116. Compare UCIOA § 3-116, 7 U.L.A. 374-81 (2008), with NRS 116.3116. The 1994 version of section 3-116 of the UCIOA included only "common expense assessments based on the periodic budget" as part of the superpriority lien, UCIOA § 3-116(b), 7 U.L.A. 569 (1994). In
Specifically, in 2009, the Legislature amended NRS Chapter 116 by adding a new section, NRS 116.310313, permitting HOAs to charge homeowners collection costs in advance of foreclosure. A.B. 350, 75th Leg. (Nev.2009); 2009 Nev. Stat., ch. 485, § 1.7, at 2795. However, NRS 116.3116 was not amended at that time to reflect the addition of NRS 116.310313. In 2011, Senate Bill (S.B.) 174 was introduced in an attempt to change NRS 116.3116(1) and (2) by adding language allowing the collection costs permitted under NRS 116.310313 to become part of the HOA's lien and the superpriority lien. S.B. 174, 76th Leg. (Nev.2011) (as introduced). The bill was amended during the session, removing the collection costs permitted under NRS 116.310313 from NRS 116.3116(1) and adding language that set a dollar limit for the collection costs as part of the superpriority lien under NRS 116.3116(2). S.B. 174, 76th Leg., (Nev.2011) (first reprint). Although the Senate Judiciary Committee approved the amended bill, the Assembly Judiciary Committee took no action, leaving NRS 116.3116(1) and (2) unchanged. S.B. 174, 76th Leg. (Nev.2011) (Bill Summary).
Because the "[c]osts of collecting" as set forth in NRS 116.310313 was omitted from NRS 116.3116(2), we must presume the Legislature did not intend for such costs to be included as part of an HOA's superpriority lien.
Horizons urges this court to give deference to an advisory opinion from the Commission for Common Interest Communities and Condominium Hotels (CCICCH), in which it determined that "Nevada law authorizes the collection of `charges for late payment of assessments' as a portion of the super lien amount." 10-01 Op. CCICCH 1, 12-13 (2010). Horizons advocates that this is the correct interpretation of the statute. In contrast, Ikon argues the CCICCH has no legal authority to publish advisory opinions because such authority is strictly reserved by statute for NRED. As such, Ikon asserts this court should follow the advisory opinion issued by NRED in December 2012. See 13-01 Op. NRED (2012).
As we noted in SFR, NRED "is charged with administering Chapter 116." 130 Nev. at ___, 334 P.3d at 416; see also NRS 116.615. That administration includes issuing "advisory opinions as to the applicability or interpretation of ... [a]ny provision of this chapter." NRS 116.623(1)(a).
Among the questions NRED was asked, to address concerning NRS 116.3116 in its December 2012 opinion was whether "the portion of the association's lien which is superior to a unit's first security interest (referred to as the `super priority lien') contain[s] `costs of collecting' defined by NRS 116.310313[.]" 13-01 Op. NRED 1 (2012). NRED answered
Id. After conducting a thorough analysis of the legislative history behind NRS 116.3116, NRED concluded the "Legislature's actions in the 2009 and 2011 sessions are indicative of its intent not to make costs of collecting part of the lien," and thus, "the association's lien does not include `costs of collecting' as defined by NRS 116.310313." Id. at 7. We find NRED's interpretation of NRS 116.3116, including its legislative history analysis, persuasive.
Taking into consideration the legislative intent, the statute's text, and statutory construction principles, we conclude the superpriority lien granted by NRS 116.3116(2) does not include an amount for collection fees and foreclosure costs incurred; rather it is limited to an amount equal to the common expense assessments due during the nine months before foreclosure.
Horizons contends that there are two separate liens — a statutory lien under NRS 116.3116 and a contractual lien derived from Horizons' CC & Rs. Horizons argues the contractual lien created in the CC & Rs allows it to have superpriority on collection fees and foreclosure costs, regardless of NRS 116.3116(2). Ikon counters that NRS 116.1206 supersedes the CC & Rs as to costs and fees, capping the superpriority lien to the amount allowed under NRS 116.3116, but argues that the time frame provided in the CC & Rs — six months — overcomes NRS 116.3116(2)'s allowance of nine months of common expense assessments. The district court concluded that there was only one superpriority lien, which included "interest, costs and other fees ... as long as the prioritized portion of the lien does not exceed an amount equal to [six] months of assessments
"The rules of construction governing the interpretation of contracts apply to the interpretation of restrictive covenants for real property. When there is no dispute of fact, a contract's interpretation is a legal question subject to de novo review." Diaz v. Ferne, 120 Nev. 70, 73, 84 P.3d 664, 665-66 (2004).
Horizons' CC & Rs state, in pertinent part, as follows:
This language indicates that a lien is created covering certain fees and costs over six months preceding foreclosure. However, NRS 116.1206(1) provides:
(Emphasis added.)
While we do not comment on the validity of the CC & Rs' lien in general, to the extent that Horizons' CC & Rs purport to create a six-month superpriority lien that includes certain fees and costs, we conclude that NRS 116.1206(1) negates the effect of those provisions because they violate NRS 116.3116(2)'s plain language by (1) limiting the prioritized portion to six months when the statute allows for nine months, and (2) including certain fees and costs. Accordingly, we conclude that the district court's limitation of the superpriority lien to six months of common expense assessments and its inclusion of certain fees and costs in the superpriority lien was error.
For the reasons set forth above, we conclude that a superpriority lien pursuant to NRS 116.3116(2) does not include an additional amount for the collection fees and foreclosure costs that an HOA incurs preceding a foreclosure sale; rather, it is limited to an amount equal to nine months of common expense assessments. We further conclude that, to the extent that Horizons' CC & R provisions can be read as creating a superpriority lien covering certain fees and costs
We concur: DOUGLAS, CHERRY, SAITTA, GIBBONS and PICKERING, JJ.
13-01 Op. NRED 12 (2012) (third emphasis added). We further note there is no mention in NRS 116.3116, or the other provisions of NRS Chapter 116 to which that statute refers, that late fees or interest relating to foreclosure collection costs may be included as part of the HOA's superpriority lien. Thus, we must presume the Legislature intentionally excluded late fees and interest from the superpriority lien statute. See DaimlerChrysler, 121 Nev. at 548, 119 P.3d at 139 (stating that "omissions of subject matters from statutory provisions are presumed to have been intentional").